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lite.cnn.com - on gopher - inofficial
ARTICLE VIEW:
Takeaways from the Supreme Court’s arguments over obstruction charge
used against January 6 rioters
By John Fritze, Marshall Cohen, Tierney Sneed and Hannah Rabinowitz,
CNN
Updated:
3:15 PM EDT, Tue April 16, 2024
Source: CNN
The Supreme Court’s conservative majority indicated Tuesday that it
may toss out a who took part in the January 6, 2021, riot on the US
Capitol, a decision that could force the Justice Department to reopen
some of those cases.
During over 90 minutes of arguments, most justices signaled concern
with how the Justice Department is using the law enacted by Congress
more than two decades ago in response to the accounting scandal.
Critics claimed the felony charge, which carries a prison sentence of
up to 20 years, was intended to prevent evidence tampering – not an
insurrection in support of a president who lost reelection.
The court’s decision, expected by July, could have significant
ramifications for some 350 people who were charged with
“obstructing” an official proceeding for their part in the Capitol
attack – including more than 100 people who have already been
convicted and received prison sentences.
The high court’s ruling could also affect the federal election
subversion criminal case pending against former President Donald Trump,
who was also charged with the obstruction crime.
Here’s what to know about Tuesday’s oral arguments:
Traumatic day boiled down to technical argument
The appeal was brought by a former Pennsylvania police officer, Joseph
Fischer, who was charged with multiple crimes for pushing his way into
the Capitol after attending Trump’s rally outside the White House on
January 6. Fischer’s attorney told the justices that prosecutors
overstepped by charging his client with what critics previously framed
as an anti-shredding law.
Mostly absent from oral arguments Tuesday was recognition of the
traumatic and deadly turn of events that took place just across the
street from the Supreme Court three years ago after Trump ginned up a
crowd with false claims of fraud and encouraged them to march on the
Capitol and “fight like hell.”
Instead, the discussion turned largely on a technical and legalistic
debate about the meaning of the words in the law – in particular the
word “otherwise.”
That 2002 law makes it a felony to “corruptly” alter, destroy or
mutilate a record with the intent of making it unavailable for use in
an “official proceeding,” or to “otherwise” obstruct,
influence, or impede such a proceeding. Fischer argued that, taken
together, the law was geared toward prohibiting records destruction.
But the Justice Department said it swept far more broadly than that,
encompassing a wider range of actions – including physical intrusion
– that would obstruct a proceeding.
“The key word is ‘otherwise,’” Justice Brett Kavanaugh, often a
critical vote in high-profile cases, said at one point as he quizzed
Solicitor General Elizabeth Prelogar. “It would be odd to have such a
broad provision tucked in and connected by the word ‘otherwise.’”
That position seemed to draw attention from Chief Justice John Roberts
as well, who at one point sharply pushed back on the government for
trying to separate the “evidence” portion of the law from a
provision dealing with “obstruction.”
“You can’t just tack it on and say, ‘Look at it as if it’s
standing alone,’” Roberts said. “Because it’s not.”
Occasionally, Prelogar sought to remind the justices of the details of
the case at hand. In one especially pointed response to a question from
Kavanaugh about the other charges the DOJ can use in Capitol riot
prosecutions, Prelogar argued that Fischer, in advance of the attack,
had expressed an intent to storm the Capitol and use violence if
necessary to disrupt the vote.
“He said, ‘they can’t vote if they can’t breathe,’”
Prelogar argued, referring to Fischer’s texts from before January 6.
“And then he went to the Capitol on January 6, with that intent in
mind, and took action – including assaulting a law enforcement
officer – that did impede the ability of the officers to regain
control of the Capitol and let Congress finish its work.”
Conservatives ask about left-wing protests
There was a heavy dose of “whataboutism” from the conservative
justices, who repeatedly brought up left-wing protests while pressing
both sides about exactly which conduct they believed would – and
wouldn’t – be covered by the felony obstruction law.
Justice Neil Gorsuch posed several hypotheticals to Prelogar, asking if
prosecutors could use the law to charge someone who participated in a
sit-in that disrupted a trial “at a federal courthouse” or who was
caught “pulling a fire alarm before a vote” in Congress.
He didn’t mention Rep. Jamaal Bowman by name, but the allusion to the
New York Democrat was clear: He pulled the fire alarm shortly before a
critical vote on a government funding bill in September. Bowman later
to a misdemeanor offense and was by the House.
Justice Samuel Alito brought up the at the Golden Gate Bridge that
occurred Monday. Pro-Palestinian protesters, angry about Israel’s
war against Hamas in the Gaza Strip, blocked rush-hour traffic, leading
to more than 30 arrests.
“What if something similar to that happened all around the Capitol so
that … all the bridges from Virginia were blocked and members from
Virginia who needed to appear at a hearing couldn’t get there, or
were delayed in getting there?” Alito asked. “Would that be a
violation of this provision?”
Prelogar differentiated those cases by pointing out that January 6 was
a far more aggressive and multi-pronged assault, with direct aims to
shut down a specific proceeding. She said many of the January 6 rioters
violently breached multiple police lines, brought tactical gear and
weapons, and made explicit threats before arriving in DC.
Liberals appear united against rioter on textualist grounds
The Supreme Court’s three liberals appeared to be lined up in favor
of the Justice Department’s position that the federal obstruction law
is broad enough to include the rioters’ conduct on January 6.
The law, Justice Elena Kagan said, could have been written by Congress
to limit its prohibition to evidence tampering. But, she stressed,
“it doesn’t do that.”
Kagan and Justices Sonia Sotomayor and Ketanji Brown Jackson pressed
Fischer’s attorney, Jeffrey Green, on the plain text of the law –
embracing a conservative notion of “textualism,” or reading the law
for its plain meaning without considering legislative history and other
factors.
Jackson noted that the language in the statute “does not use the term
‘evidence’” but rather “uses the term ‘official
proceeding,’” which is defined as including a congressional
proceeding.
Trump looms in the background
Though Trump is not a party in the case, the appeal indirectly thrust
him onto the Supreme Court’s docket for the third time this election
year. In March, the justices unanimously ruled that the former
president should appear on the ballot in Colorado despite claims he
violated the 14th Amendment’s “insurrectionist ban” because of
his actions on January 6.
Special counsel Jack Smith has charged Trump with the same obstruction
crime prosecutors filed against Fischer and more than 350 others
involved in the attack. The former president and presumptive GOP
nominee would almost certainly use a win for Fischer to try to further
undermine the Justice Department’s prosecution of the January 6
defendants.
How much Fischer’s case would spill over to Trump’s is open for
debate. Smith has argued that the obstruction charge against Trump is
based on the fake slate of electors the former president attempted to
have submitted to Congress, not the riot itself. Unless the court rules
broadly in a way that undermines the charge entirely, the case against
Trump may still stick even if Fischer wins his case.
Clarence Thomas was back in court
Justice Clarence Thomas , with the court refusing to explain his
absence. He was back on Tuesday for a case that critics say he
shouldn’t be involved in at all.
The Fischer case has prompted some liberal critics of the court to
demand that Thomas recuse himself. That’s because Thomas’ wife,
Ginni Thomas, attended Trump’s incendiary rally on January 6 and with
Trump allies on to keep him in power the election.
Thomas has ignored the requests to recuse and posed a number of
questions that challenged both sides in the case.
“There have been many violent protests that have interfered with
proceedings,” Thomas asked Prelogar, pressing on a theme he returned
to repeatedly during the arguments. “Has the government applied this
provision to other protests in the past?”
Prelogar said the Justice Department has applied the law more broadly
than in evidence tampering cases but acknowledged it has not been used
previously against “a situation where people have violently
stormed” a building. But that, she said, was based on the unusual
nature of the Capitol attack itself.
“I’m not aware,” she said, “of that circumstance ever happening
prior to January 6.”
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